Saturday, 15 July 2017

Where is the Public Interest in Business-to-Business Licensing?

At the end of June I spoke at the 19th Biennial IASPM Conference in Kassel, Germany. My main theme was blanket licensing and how it is under threat: some artists are refusing to licence their songs to streaming services; some publishers are withdrawing their repertoire from broadcast licensing; and Blockchain technology has been proposed as a means of individually licensing the use of music in venues, shops, hotels and industrial premises, as well as for individually licensing broadcast and online. For me, these developments are not good. If blanket licensing goes, the public will lose its democratic access to music. Artists will suffer too: the winners will no longer compensate the losers.
            My talk drew on a blog entry from last year and it could be considered out of date. Twelve months ago there were many celebrity holdouts from Spotify and there was much talk of 'windowing', i.e. restricting the availability of new releases. Today, this is no longer the case. Spotify has become an aspirational brand. Artists, record companies and publishers are no longer restricting their content on this streaming platform.
            This latest phase does not detract from my larger point, however. Blanket licensing is being eroded. We will miss it when it’s gone. You can access my paper via my page.


Monday, 3 July 2017

Fear of Musicking

There is a bias amongst some popular music academics. They are for musicians and they are against songwriters. This is not borne out of a need to venerate the incredible playing ability of certain artists, quite the opposite in fact. The desire is to move away from the idea of ‘artists’. Musicians can be viewed as workers. Theirs is a job of honest graft. In contrast, it is songwriters who carry with them the bourgeois notion of the creative genius, operating at a remove from society. This viewpoint is made clear in a recent call for papers for a ‘Working in Music’ conference:
As with any artistic production, music is also - and perhaps mainly - work. Such an idea is opposed to the romantic mythology from the 19th Century which conceives of artistic activity as coming from transcendental inspiration, impossible to rationalize, and of the artist as an exceptional being whose ‘talent’ would be irreducible to sociological analysis.
What we should value is the work (the physical effort that is expended in making music) and not ‘the work’ (the musical product that is credited to an author). Christopher Small, with his neologism ‘musicking’ is key to this notion. He believes that we should think of music as a process - and thus a verb - rather than as an object - get rid of that noun!
To music is to take part, in any capacity, in a musical performance, whether by performing, by listening, by rehearsing or practicing, by providing material for performance (what is called composing), or by dancing. We might at times even extend its meaning to what the person is doing who takes the tickets at the door or the hefty men who shift the piano and the drums or the roadies who set up the instruments and carry out the sound checks or the cleaners who clean up after everyone else has gone. They, too, are all contributing to the nature of the event that is a musical performance.
I’m in agreement with much of this. Music is social; we should take genius down a peg or two; songwriting should not be placed above performance in the musical hierarchy. This outlook generates some questionable claims, however.
            First, there is the idea that the practice of musicians is out of step with the legal and commercial perceptions of music. Simon Frith has recently argued that ‘The law treats music as a work, a commodity, intellectual property, something that can be owned and exploited’, whereas ‘Musicians think of music as a process’. But do they always think in this manner? The recording industry may have declined in recent years, but the goal for many musicians is still to make a recording. They also want to have credit for it. These musicians do think of music as a noun. Frith once described the process of popular music as resulting in an object:
The ‘industrialization of music’ can’t be understood as something that happens to music but describes a process in which music itself is made – a process, that is, which fuses (and confuses) capital, technical, and musical arguments. Twentieth Century popular music means the twentieth century popular record; not the record of something (a song? a singer? a performance?) which exists independently of the music industry, but a form of communication which determines what songs, singers, and performances are and can be.
I would argue that this still remains the case, regardless of the academic vogue for musicking.
            Second, there is the desire to conflate music-making processes. It is argued that the division of labour into composition and performance is a classical music conceit. Popular music, in contrast, witnesses a confusion of these roles. Musicians compose as they are playing; songs are produced communally. Frith stresses this point in his recent article, stating that ‘The law assumes music is authored, created by named individuals’, whereas ‘Musicians know that music making is an essentially collaborative, a social process [sic]’.
            Music making is certainly collaborative and the divisions between composition and performance can be blurred. This does not mean, however, that they are the same thing. Few popular music songs are notated, but most of them are written. This is most obviously true of the lyrics. The words are honed and they are crafted, and it is usually an individual who does this. It is also true of the music: chords and melodies are usually developed by individuals or by small teams of writers; they seldom emerge whole during the rehearsal process.
            There is, of course, the question of whether the chords and melody should be valued above other elements of music, such as rhythm and the timbre. Frith believes not. He argues that ‘The law describes music in terms of notes and tunes’, whereas ‘Musicians think of music in terms of sounds and textures’. Again, though, do all musicians think in this way? There are a lot of performers who still believe in songs, and there are many who believe (perhaps conservatively) that lyrics, melody and harmony should be given greatest compositional accord.
            The idea that performance and composition take place simultaneously is in some ways outdated. It harks back to the idea of the rock group: a band of musicians who work up their material in rehearsal or in the recording studio. This is not modern practice. Most contemporary hit records are made by solo artists or by collaborations between solo artists. These musicians usually have a hand in writing their songs, but they do not write them on their own. We live in an era of professional songwriters. Their job is to work on the notes and tunes. It is somebody else’s job to work on the performance.
            There is, however, one modern example where the lines between performance, composition and recording are truly blurred. This is the lone, electronic artist who writes, edits and records their material on a digital audio workstation. Ironically, this type of music making is the least social or collaborative of all.
            Finally, we come to attempts to solve the legal dilemma. If the law is an ass when it comes to performers, how do we make it into something better? One proposal that has been put forward is to regard performance as composition. Richard Arnold has argued for this. He believes that ‘in the field of popular music many works are created in performance rather than being written down first’. Lionel Bently’s solution is to forgo the conventional compositional copyright for popular music and instead have a copyright in the ‘original work of sound’:
The effect of this would be to save copyright law from being asked to invent ‘musical works’ (and, indeed, ‘performances’) in circumstances (as in much of rock and pop – but not all) where the musical artefact is created in the recording studio (and subsequently marketed, appreciated and consumed) by way of such recording.
This idea is problematic in two respects. First of all, it ignores the fact that many songs are not written by the recording artists. As noted above, it is rare today for hit songs to be worked up in a studio like this. Bently’s idea is also unworkable in respect of cover versions: artists whose songs have been covered are not likely to welcome the covering artists as co-composers. The second problem with this proposal is that it posits composition as the desired musical goal. Copyright will give due respect to performers, but only if they cast themselves as writers. Isn’t this where we came in?